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Rules and Regulations
Federal Register Vol. 86, No. 48
Monday, March 15, 2021

This section of the FEDERAL REGISTER
contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.

DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 103, 106, 212, 213, 214, 245, and 248
RIN 1615AA22

Inadmissibility on Public Charge Grounds; Implementation of Vacatur U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
AGENCY:

This final rule removes the regulations resulting from a final rule issued in August 2019, which has since been vacated by a Federal district court.
DATES: This rule is effective on March 9, 2021, as a result of the district courts vacatur.
FOR FURTHER INFORMATION CONTACT:
Mark Phillips, Residence and Naturalization Division Chief, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD
20746; telephone 2407213000.
SUPPLEMENTARY INFORMATION:
SUMMARY:

I. Background and Basis for Removal of Regulations
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In August 2019, the U.S. Department of Homeland Security DHS issued a final rule titled, Inadmissibility on Public Charge Grounds.1 The rule was preliminarily enjoined by courts in the Southern District of New York, District of Maryland, Northern District of California, Eastern District of Washington, and Northern District of Illinois.2 Following a series of stays of 1 See 84 FR 41292 Aug. 14, 2019; see also 84 FR
52357 Oct. 2, 2019 making corrections.
2 See City and Cnty. of San Francisco v. USCIS, 408 F. Supp. 3d 1057 N.D. Cal. 2019; Cook County, Ill. v. McAleenan, 417 F. Supp. 3d 1008
N.D. Ill. 2019; Casa de Md. v. Trump, 414 F. Supp.
3d 760 D. Md. 2019 Make the Road New York v.
Cuccinelli, 419 F. Supp. 3d 647 S.D.N.Y. 2019;

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the preliminary injunctions,3 DHS
began applying the rule on February 24, 2020. Since that time, preliminary injunctions against the rule have been affirmed by the Second, Seventh, and Ninth Circuit Courts of Appeals.4 On November 2, 2020, the U.S. District Court for the Northern District of Illinois issued a Rule 54b judgment vacating the rule on the merits.5 On November 3, 2020, the Seventh Circuit granted an administrative stay of the district courts judgment and, on November 19, 2020, the Seventh Circuit granted a stay pending appeal. On March 9, 2021, DHS
moved to dismiss its appeal before the Seventh Circuit, and the Seventh Circuit dismissed the appeal and the Rule 54b judgment went into effect. DHS is now implementing the judgment, i.e., the vacatur of the August 2019 rule.
This rule removes from the Code of Federal Regulations CFR the regulatory text that DHS promulgated in the August 2019 rule and restores the regulatory text to appear as it did prior to the issuance of the August 2019 rule.6
Wash. v. DHS, 408 F. Supp. 3d 1191 E.D. Wash.
2019.
3 See Wolf v. Cook County, 140 S. Ct. 681 2020
staying preliminary injunction from the Northern District of Illinois; DHS v. New York, 140 S. Ct. 599
2020 staying preliminary injunctions from the Southern District of New York; City and Cnty. of San Francisco v. USCIS, 944 F.3d 773 9th Cir.
2019 staying preliminary injunctions from the Eastern District of Washington and Northern District of California; CASA de Md. v. Trump, No.
192222 4th Cir. Dec. 9, 2019 staying preliminary injunction from the District of Maryland.
4 See New York v. DHS, 969 F.3d 42 2d Cir.
2020; Cook County, Ill. v. Wolf, 962 F.3d 208 7th Cir. 2020; City and Cnty. of San Francisco v.
USCIS, 981 F.3d 742 9th Cir. 2020; see also Casa de Md. v. Trump, 981 F.3d 311 4th Cir. 2020
granting en banc review and vacating a panel opinion that had reversed a preliminary injunction.
In July 2020, the Southern District of New York issued a second preliminary injunction against the rule for reasons related to the COVID19 pandemic, which the Second Circuit later stayed. See New York v. DHS, 475 F. Supp. 3d 208 S.D.N.Y. 2020, injunction stayed, 974 F.3d 210 2d Cir. 2020.
5 See Cook County, Ill. v. Wolf, No. 19C6334, 2020 WL 6393005 N.D. Ill. Nov. 2, 2020.
6 DHS notes that it has maintained changes that DHS made to the same regulations via other rulemakings that post-dated the August 2019 rule.
For instance, on July 31, 2020, DHS published a rule revising the section heading for 8 CFR 103.6
to read, Immigration Bonds. See 85 FR 45968, 45989 July 31, 2020. DHS has maintained that section heading here, because it was made by a rule that has not been vacated. Similarly, on May 14, 2020, DHS published an interim final rule that revised the authority citation for 8 CFR part 212.
See 85 FR 29264, 29311 May 14, 2020. DHS has maintained that authority citation here.

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This rule also removes regulatory text that DHS initially promulgated in 8 CFR
part 103 as part of the August 2019 rule, but later moved to 8 CFR part 106 in the August 2020 final rule entitled U.S.
Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements 2020 USCIS fee rule.7
Although the regulatory text was moved as part of the 2020 USCIS fee rule, the content of the regulatory text was first issued in the August 2019 rule that has now been vacated.
Because this rule simply implements the district courts vacatur of the August 2019 rule, as a consequence of which the August 2019 rule no longer has any legal effect, DHS is not required to provide notice and comment or delay the effective date of this rule. Moreover, good cause exists here for bypassing any otherwise applicable requirements of notice and comment and a delayed effective date. Notice and comment and a delayed effective date are unnecessary for implementation of the courts order vacating the rule and would be impracticable and contrary to the public interest in light of the agencys immediate need to implement the noweffective final judgment. See 5 U.S.C.
553bB, d. DHS has concluded that each of those three reasonsthat notice and comment and a delayed effective date are unnecessary, impracticable, and contrary to the public interest independently provides good cause to bypass any otherwise applicable requirements of notice and comment and a delayed effective date.
II. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 PRA, DHS is required to submit to the Office of Management and Budget OMB, for review and approval, collections of information and changes to collections of information.8 Table 1
below lists all collections of information impacted by the vacatur.
7 See 85 FR 46788 Aug. 3, 2020. The 2020
USCIS fee rule is currently the subject of two preliminary injunctions. See Immigr. Leg. Res. Ctr.
v. Wolf, No. 20cv05883JSW, 2020 WL 5798269
N.D. Cal. Sept. 29, 2020; Nw. Immigr. Rights Proj.
v. USCIS, No. 193283, 2020 WL 5995206 Oct. 8, 2020.
8 See Public Law 10413, 109 Stat. 163 May 22, 1995 codified at 44 U.S.C. 3501 et seq.

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